PARDEEP KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS order will dispose of two petitions, i.e., Criminal Misc. No. M -31377 of 2010, Pardeep Kumar v. State of Haryana and Criminal Misc. No. M -35725 of 2010; Dheeraj Gupta and another v. State of Haryana. The above said petitions have been filed by the petitioners for quashing of FIR No. 182 dated 28.8.2009 under Sections 420, 272, 273, 120B IPC registered at Police Station Baldev Nagar, Ambala on the basis of a secret information to the effect that petitioner Pardeep Kumar deals with adulterated ghee arid that he would visit Baldev Nagar on 28.8.2009 with ghee and if nakabandi was held, he could be hauled up along with the adulterated ghee. ASI Naresh Kumar sent a written ruqqa to the Police Station to the effect that Pardeep Kumar, who is running a provision store and under the garb of this provision store, he is selling spurious Desi Ghee to the general public by showing it to be pure Desi Ghee with the help of such like traders. He was not only cheating the people but also playing with their lives. The secret information was received from a reliable source, therefore, offence under Sections 420, 272, 273 IPC was made out. Hence a ruqqa was sent through H.C. Raj Pal to the Police Station for registration of the case. After sending ruqqa, the Investigating Officer proceeded for laying Naka after joining witnesses for investigation. ASI Naresh Kumar along with his companions reached Dera Baba Badbagh Singh near village Dhulkot. At the same time Dr. Prem Singh, Inspector, Food and Supplies Department, Ambala also reached there on the summoning of ASI Naresh Kumar. A nakabandi was held. After some time, a three wheeler was intercepted. A young man came out of the three wheeler. He was having a plastic gunny bag. He was apprehended. He told his name as Pardeep Kumar. On search, plastic bag was found containing a tin of ghee with Kedar Ghee mark on it. The recovered Desi Ghee was checked but no satisfactory reply could be given by Pardeep Kumar -petitioner. The Inspector checked the ghee and found it to be adulterated. Pardeep Kumar allegedly disclosed to the police that he came into cont with persons who were dealing with adulterated Desi Ghee and was persuaded by his greed. Pardeep Kumar was arrested. He made a disclosure statement that he had kept concealed large quantity of ghee in his house situated at Ram Kishan Colony, Ambala Cantt. and he could get the same recovered. The accused led the police party to his house situated at Ram Kishan Colony. House No. 1272 and got recovered 23 tins of adulterated ghee of Kedar mark, Which were sealed. On the carton of the tins J.K. Food Sanoli Road, Ugrakheri, Panipat was printed. Besides this, 23 tins of adulterated desi ghee of Anmol mark and 54 tins of half kgs. mark Anmol were also recovered on which Hind Dairy Food B -58, Industrial Area, Maharaj Pura, Gwalior was printed. The recovered ghee was taken in possession. ASI Naresh Kumar carried the ghee to Police, Post Baldev Nagar and separated the samples from the recovered ghee. All the samples and the adulterated ghee were sealed with his own seals 'NK' and 'PR' and the same were taken into possession vide seizure memo. It was got attested by the witnesses. The accused was produced before the Court on 29.8.2009. His police remand was obtained. He made a disclosure statement and on the basis of such disclosure got recovered 6 boxes of Natkhat Gopal Desi Ghee. Out of the ghee recovered, on the tins measuring 2 liters of ghee Jai Durga Milk Products, Mathana, Fipli was printed with seal of August, 2009. Besides this, 45 tins having one liter ghee in each with mark of Natkhat were also recovered. ASI Naresh Kumar reached the house of Ashok Kumar in Ram Nagar Ambala Cantt. He was found present. He was joined with the investigation. He told that he was an employee of M/s. Jai Durga Milk Products, Mathana as Salesman and this factory had been lying closed for the last many days and that adulterated ghee was prepared in this factory. He told that Ghee was prepared by Sachin and Raj owners of the factory. About the sale of Natkhat Gopal mark ghee, they disclosed that their firm had been dissolved but the stock was still lying with them and that he became distributor for the ghee. Ashok Kumar had purchased 50 boxes of ghee on 15.8.2009 at the rate of Rs. 185 per liter against bill. Accused Ashok Kumar was arrested by ASI Naresh Kumar. He got recovered a bill which was taken into possession vide recovery memo. The accused and the desi ghee were carried by ASI Naresh Kumar to Police Post Baldev Nagar where samples were separated from the seized Natkhat Gopal desi ghee. Samples and the remaining property were sealed with seal "NK' and 'PR' and the same were taken into possession by the police vide' seizure memo. Accused Ashok Kumar made a disclosure statement and had led the police party to the factory from where the ghee had been brought in Canter. It was also seized on 30.8.2009. On 30.12.2009, ASI Om Parkash of Police Post Baldev Nagar arrested accused Dheeraj and Sachin and seized the documents on 8.9.2009 about the closure of factory. On 9.3.2010, ASI Vinod Kumar seized returns, and inspection report in respect of the factory. The investigation was taken by CIA Staff oh 25.5.2010 and investigation was carried out by ASI Balbir Singh. As no evidence could be collected for the arrest of Ashish Gupta, Arpana Gupta, Dharam Pal Kaushik and Ramesh Gupta being partners of the firm,, during investigation, it was found that business of the factory was being carried out by Sachin and Dheeraj.

(2.) THE petitioners Sachin and Dheeraj in Criminal Misc. No. M -35725 of 2010, had also submitted an affidavit in this respect to ASI Naresh Kumar thereby investigation was entrusted to ASI Balbir Singh. Pardeep Kumar and Ashok Kumar accused also disclosed that entire business of the factory was led by Sachin and Dheeraj. Investigation of the case was verified by CIA Staff. Remaining partners of Sachin and Dheeraj were found innocent. Pardeep Kumar, Ashok Kumar, Dheeraj and Sachin were found to be involved in an offence under Sections 420, 272, 273, 120B IPC. On completion of investigation, challan was presented against them.

(3.) LEARNED counsel for Mr. Dheeraj Gupta and Sachin Singla argued that in the present case, offence being not cognizable under the Prevention of Food Adulteration Act, FIR could not be lodged. On the basis of the above said argument, the counsel for the petitioner sought quashing of the FIR and all the criminal proceedings. Reliance was placed on Jatinder Kumar Jain v. State of Punjab. 2008 (2) FAC 437, wherein in exercise of powers under Section 482 Cr.P.C. in a case of sale of adulterated Chillies, Haldi and Besan, FIR was registered without adopting the procedure given in Prevention of Food Adulteration Act, 1954 and Section 7 of the Essential Commodities, Act. The proceedings initiated under 420, 272, 273 IPC were quashed. In Shiv Kumar v. State of Punjab 2009 (1) FAC 238 the FIR on the basis of spurious cheese under Sections 420, 269, 270 and 271 were quashed on the ground that the allegations against the petitioner fell under the ambit of Prevention of Food Adulteration Act, 1954 and that under Section 20 of the said Act, no prosecution could be launched without the written consent of Central Government or the State Government or a person authorised by the Government in this behalf by general or special order by the Central Government or the State Government. In the said case, the proceedings initiated on the basis of FIR were quashed but the complaint under the Prevention of Food Adulteration Act was permitted to continue against the petitioner. In Satish Mishra v. State of Bihar and others 2007 (1) FAC 393 it was held that if, there are allegations that provisions of Prevention of Food Adulteration Act are Violated, then it would be the authority of Food Inspector alone and not the Police Officer to inspect, seize or investigate the matter. The pro ution initiated on the basis of FIR was quashed by Patna High Court. In the said judgment, it was observed that provisions of Section 4(2) Cr.P.C. prescribed that in cases of special statute, the special authorities have been conferred with the powers and the police officers will not have any jurisdiction. In Shambhu Dayal Agrawal and others v. State of Gujarat 2003 (2) FAC 241, FIR filed by Police Sub Inspector in a case of possession of adulterated edible goods was quashed on the ground that Police Inspector is not competent to file complaint and that as the provisions of Prevention of Food Adulteration Act and Rules provide that it is the Food Inspector who can take the sample. In A.K. Roy v. State of Punjab 1986(2) RCR (Criminal) 569, was also relied upon. The prosecution launched by sub delegate of Food Inspector in a case of sale of adulterated food in violation of Rule 24 of Prevention of Food Adulteration Rules, 1955 was quashed on the ground that the said powers are vested in Food (Health) Authority (i.e., Director of Health Services, Punjab) and that he was only competent to launch prosecution. A notification issued by the Food (Health) Authority delegating these powers to institute the prosecution under the Prevention of Food Adulteration Act was quashed.